Sen. Bill Frist, the chief promoter of the nuclear option, says he wants to do away only with filibusters of judicial nominations and would not rule them out of order with respect to legislation. But there's no principled, or even plausible, distinction here. The Constitution says "advise and consent," which means senators get to play a role in judicial selection. They're within their rights to use every available procedure to block nominees they object to. [Emph. added]

The Constitution does say "advise and consent," but as Weisberg notes it doesn't say anything about filibusters. That leaves the Senate to structure the "advise and consent" process as it sees fit. And there are several plausible distinctions between judicial nominations and legislation. The problem is that most of these distinctions cut in the opposite direction from the one Frist is going in:

1) Judges are for life, as Rick Hertzberg notes, while mistaken legislation can be repealed by subsequent Congresses.

2) Judges (however long they serve) have acquired unaccountable, super-legislative powers the Framers almost certainly didn't anticipate. When mere legislators get mad at judges and try to hold them accountable, eminent lawyers from their own party swat them down. When Presidents try to hold them accountable, they're accused of court-packing. Basically, they are not accountable the way other players in the system are--certainly not accountable in any way commensurate with their power.

Both these factors suggest that we must be really, really careful in selecting judges in the first place, which is why both factors militate in favor of requiring compromise--which is what filibusters do.

That said, I also don't understand parts of my own previous pro-filibuster-for-judges argument. In particular, I mentioned the extra deference traditionally paid to Presidential court picks by members of his own party--which now seems like a pretty weak basis for requiring extra compromise in judge-approving votes. Would Bush really get out-of-the-ordinary, lockstep GOP support if he nominated, say, Richard Epstein to the Supreme Court? I'm not so sure.

Plus, there's a much more powerful reason--a third reason--for treating judicial votes differently that I completely overlooked, namely that the Senate's advise-and-consent votes are votes that don't involve the House in any way. That means one of the basic majority-obstructing mechanisms the Constitution provides for legislation--the need to get two quite different legislatures to agree--simply isn't there when it comes to voting on judges. SenatorFrist could reasonably say that, because judicial appointments are treated differently from laws in the Constitution, we need extra anti-majoritarian protections like the filibuster when we consider judges.

Of course, Frist has said exactly the opposite--that we need fewer anti-majoritarian protections when it comes to judges. That's why I think he's wrong. But it's not as if he couldn't come up with any plausible reason why the distinctions between judges and legislations require that result. He might argue that judges are so permanently powerful that our only hope is that a president knows he'll be held strictly accountable if he appoints a turkey--which means his responsibility has to be crystal clear. Forcing a compromise with an opposing, filibustering minority party only muddies these lines of accountability and lets each party blame the other--acceptable with correctable legislation, but not with life-tenured superlegislators. I don't buy this argument--Presidents have plenty of ways to duck responsibility for bad judicial appointments; it's better to prevent them in the first place. But it's an argument.

P.S.: I also made the not-wildly-strong argument that we can safely eliminate the filibuster for legislation because Presidents will still have to compromise with dissident members of their own party. That's true, but if intra-party diversity were the only thing blocking majoritarian legislative extremism there wouldn't be all that much blocking going on these days. The real reason for ending the legislative filibuster is the one stated by Timothy Noah--that the prospect of actually enacting laws with a simple majority vote will force the President's entire party and the President himself to behave more responsibly:

But what mostly gives the [GOP] appeal to the electorate is its ability to scream and yell while seldom being granted the opportunity to ban abortion or eliminate the Securities and Exchange Commission or declare war on France. It stirs things up satisfyingly, while never requiring anybody to pay the price. If the Senate eliminated the filibuster, Republicans would have to choose between putting their money where their mouth was or just shutting up.

In short, without filibustering Democrats to stop them they'd have to act more sensibly then we now fear. And if they didn't their laws (unlike their judges) could be repealed. 2:02 A.M. link

Thursday, April 21, 2005

Italian Government Falls, New Jersey Politician Indicted, Summer Brings Warmer Weather: The nation's biggest teachers' union, the NEA, doesn't like the No Child Left Behind Act? Gee, I never knew! If the NEA didn't hate the NCLBA it would be a strong indication the NCLBA was deeply flawed. (If we're really going to improve K-12 education, many NEA members are going to have to lose their jobs.) Yet a lawsuit brought by the union attacking the act as an "unfunded mandate" got front-page play in the NYT (and USAT). As usual, when faced with the NYT's campaign to generate anti-NCLB hysteria,** concerned citizens turn to Eduwonk for a sober analysis. He doesn't disappoint. Sample:

[T]he core of the lawsuit boils down to the contention that No Child Left Behind is forcing school districts (and by extension states) to spend too much on education. This is, to put it mildly, a novel argument from the NEA ... [snip]

**--NYT's lede: "Opening a new front in the growing rebellion against President Bush's signature education law ...." Times reporter Sam Dillon also used the classic 'Some Analysts Say' device in his second graf to give the NEA's suit the appearance of rectitude--as in, "Some legal scholars said that the union, the National Education Association, had assembled a compelling cause of action," though "it was difficult to judge the suit's prospects." [Emph. added] Of course, Dillon could just as well have highlighted "some legal scholars" who said the union's proposed cause of action was dangerous and destructive, in addition to having dim "prospects" for actual success in the federal courts. ... In stark contrast:USA Today'sstory wasfair and unhyped! ... 11:55 P.M. link

The report will allege that Justice Department officials snuffed out a tax case against Cisneros and that the IRS sometimes audited Clinton critics without good cause.

Not very strongly worded, but let's see the report, no? ... P.S.: Voters probably think Hillary Clinton has an imperfect marriage. But do they want to have this possibility shoved in their face? [Don't worry, Bill had Jerry Bruckheimer there to keep him on the straight and narrow!-ed Ron Burkle wasn't available?]... P.P.S.: Via Lucianne, who has a nose for this sort of thing. ...11:56 A.M. link

You've heard of the Full Ginsburg? Now there's the Full Kokoski. ... 2:04 A.M. link

The Ecology of Blarney:Acclaimed L.A. BS-artist Mike Davis has returned (and his old nemesis Brady Westwater is right back on his case). It is bizarre that all four layers of L.A. Times editors would approve publishing Davis after the paper's own exhaustive 1999 investigation of Davis' book Ecology of Fear, by reporter Ted Rohrlich, found it riddled with bogus assertions. True, Rohrlich deployed some exculpatory spin in his lede, declaring that "Most of [Davis'] stretchers appear to be the result of haste, wishful thinking and a taste for entertaining hyperbole rather than malice." (Well, all right then!) But Rohrlich's details were damning. Here's a sample:

[Davis'] serious argument focuses on the high cost of providing firefighting services to Malibu whenever winds blow a chaparral firestorm down predictable canyon corridors toward the sea. He contrasts this with what he says are cutbacks in the number of inner-city fire inspections. Then he takes readers on a partial flight of fantasy involving a real Malibu Times article that chronicled adventures during 1993's firestorm.

"The Malibu Times," he wrote, "celebrated the case of two intrepid housewives from the Big Rock area who loaded their jewels and dogs into kayaks and took to the sea, where they were eventually rescued by blond hulks from Baywatch Redondo. Only the fine print revealed that, in saving their pets, they had left their Latina maids behind. (The abandoned maids made a narrow escape down the beach to Topanga.)"

An examination of the Malibu Times article shows that Davis made up the parts about the jewels, the hair color, the kayakers' occupations, the evidence of their callous classism and the ethnicity of their maids. The article, which had no accompanying photographs, also had no fine print. It listed as its principal source one of the women Davis called a housewife who was quoted as saying that she had been "at work in town" when she returned home through a roadblock and then, with a neighbor, elected to paddle out to sea. She told the paper that her maid and the neighbor's maid "were afraid to go out on the water and walked down to Topanga, where a stranger picked them up and drove them" to the home of a relative of one of their employers.

Davis is mischievously unrepentant. "I stand my ground on my interpretation of this article. . . . It really sounds to me that they deserted their maids." He insists that it was reasonable of him to conclude that the maids would have been Latinas; that because the article mentioned that the women took unspecified treasures with them, it was reasonable to assume they had taken jewels and that it was reasonable to assume that their rescuers would have been blond. "I read between the lines," he said. [Emph. added]

Would You Buy a Three-Beer SUV from This Company? The WSJ's Lee Hawkins Jr. visits Zachow's tavern in Janesville, Wis. [$ ]:

On an early afternoon in mid-March, GM workers who build big Chevrolet Suburban sport-utility vehicles sat elbow-to-elbow on bar stools, smoking cigarettes and drinking Milwaukee-brewed Miller beers and shots of scotch. Zachow's sells deep-fried pork rinds and 24 beers for $24. A sign in the corner reads: "Finish your beer. There are sober kids in India."

Scenes like this worry the GM brass as they grope with spiraling health-care costs.

Spiraling health care costs? This isn't afterhours--it's the middle of the working dayfor some of these GM people. How about worrying about the quality of the assembly work they do when they get back to the plant? The bar owner's defense:

Mr. Zachow said workers don't get drunk when they hit his bar during breaks. "They only have less than a half-hour for their breaks. If they can get two or three beers down, that's about it," Mr. Zachow said. [Emph. added]

Two or three beers in half an hour? That does not seem conducive to precision assembly. "You can't control what people do on their lunch hour," GM spokesman Jerry Dubrowski tells the WSJ. But do Toyota, Honda, and Nissan let the workers at their American assembly plants pound half a six-pack during breaks? Of course, their plants are almost all non-union. Is breaktime boozing a UAW-protected practice? Smoking, recently curtailed at the plant, was certainly a union issue:

"It's a local issue and it's a matter of local bargaining," says spokesman Stefan Weinmann at GM headquarters in Detroit. "It's not something that we can influence centrally."

"You're talking about people who have worked at a factory for 30 years or more," says Michael Kelley, a factory worker and former union official who works at a GM manual transmission plant in Muncie, Ind. "They don't want to be told that they can't do what they've been doing all along."

Fair enough. Admirably independent, even. The problem is that consumers don't want to be told which cars to buy either! The Suburban has an "average" (read: OK, not terrific) reliability rating in Consumers Reports. But at some point, when the Japanese transplants move into the large SUV segment (employing workers as American as those in Janesville) people may stop buying the vehicles Zachow's patrons build. ... Update: Today, the Journal published a UAW letter defending the Janesville plant. ... Backfill: I was alerted to the rapid consumption of beers in the WSJ's Janesville story by someone, but couldn't remember who. Turns out it was Tom Bevan in this RCP item. 8:31 P.M. link

Mickey's Assignment Desk, Hardcover Division: Maureen Dowd should write a book about her mother and how Washington, D.C., has changed during her mother's lifetime. Every column Dowd writes about her mother is direct, funny and moving. ... 8:14 P.M. link

Vice Chairman Lutz defends General Motors on his blog and once again it's not a worthless exercise. At least he talks about the company's products instead of whining about "legacy" costs. He's surprisingly effective defending his pet Australian import, the Pontiac GTO. ... Does Lutz convince anyone that Forbes' Jerry Flint was wrong when Flint reported that Lutz actually doesn't like many of GM's current designs (even the ones he's supervised) any more than the press does? No. ... P.S.: And if Lutz really thinks that

he is truly delusional. Still, like a good blogger Lutz links to Automobile piece, so his readers can discover for themselves that it actually says

the Cobalt is a credible effort from GM, but doesn't dislodge the Mazda 3 from its top spot in our pantheon of small cars.

Which is closing-paragraph carmagspeak for "Nice try, buddy, but you're not close." ... P.S.: I just got through test-driving a Mazda 3. It's good, but beatable! (More in "Gearbox"soon.) ... 2:11 P.M. link

Glory Days: Four Layers of Experienced LAT Editorsreport that the U.S. men's soccer team won the World Cup in 1950, during the oft-forgotten era of American soccer dominance. ... P.S.: There's also the Times' Pulitzer-winning Chico story. The newspaper's correction only looks twenty inches long because they've mistakenly posted it twice! ... [Thanks to S.S, ] 11:26 A.M. link

3) We're in for a huge culture-war battle this summer over whether to regulate Logo (and other gay networks), with cultural conservatives making it a Schiavo-like cause. ...

Frank Rich can write the columns now and take July and August off. ... [Why a big fight this summer when we already have gay characters on network TV and entire gay shows--The L-Word--on cable? Cultural conservatives have already lost that battle-ed Gay characters and gay Showtime dramas are one thing. An entire network celebrating and validating homosexuality pumped into every home with basic cable service might be too much for many people to tolerate. Maybe they don't accept that they've lost the battle! Maybe journalists telling them they've lost the battle makes them madder.] 2:11 A.M. link

The May issue of Motor Trend--on your newsstands now!--features an article ("rear drive rules") describing all the fabulous cars General Motors is going to derive from its "new rear-drive Zeta platform." Except that GM sh**canned its planned American Zeta cars in late March, apparently because they couldn't compete--not with the Japanese, but with Chrysler. ... P.S.: The WSJ's Holman Jenkins argues that GM's strategy [$] is basically to tread water until its burdensome legacy work force dies! I don't quite get the logic of Jenkins' theory. GM has the burden of the health and retirement costs whatever happens. Why wouldn't it try to produce some hit cars and make some money to help pay those costs? Jenkins claims the need to care for aging workers makes GM more risk averse than if CEO Rick Wagoner just had to worry about shareholders "none of whom will go hungry if you swing for the fences and miss." But attempting to coast through the decade with SUVs and rental cars (like the Buick LaCrosse)--and no immediate prospect of national health insurance that shifts medical costs to the government--seems like the riskier course. ... Caveat: It's always possible that the Zeta is a lousy platform and GM will find a better one for American rear-drive cars. If so, GM should blog about it. Of course, that might annoy its overseas divisions, which still plan to produce Zeta cars. ... P.P.S.: GM's blog does link approvingly ("tough but fair") to aForbes column, which defends GM Vice Chairman Bob Lutz against the LAT's Dan Neil in the following passage:

You don't like the designs of some of the new cars. Well, Bob Lutz doesn't, either, but it's the best he's been able to get, given the time constraints, designs locked in before he came to GM, the company's policy of reusing ancient platforms and GM's bureaucracy. [Emph. added]

There you have the best defense GM is able to muster: We don't like our cars either! It's both mildly astonishing and heartening that the company is willing to publicize this admission, even if only through a blog link.. ... 1:02 P.M. link

Here's everything you need to know about the ... er ... unappealing Senor Posada, seeker of asylum. Good testy Bill Clinton Newsweek quote near the end. ... P.S.: Bizarrely, the NYT seems to have completely whiffed on this potentially juicy anti-Bush story, according to both NEXIS and the NYT's own search function. 12:32 P.M.link

Smith, however, reassured analysts that company-wide bleeding will slow. "Our goal is to substantially reduce year-over-year declines in home-delivery and single copy sales in the September Fas-Fax," he said. "The rate of decline should diminish between now and September."'

Don't worry, honey, the bleeding will ... slow.... There are all those layers to go through! ... P.S.:Times circulation has dropped "more than 5.5%" in the latest report, according to E&P. ... Query: How precipitous does the decline have to be before the LAT's editors consider soiling themselves by running a gossip column people might actually want to buy the paper to read? (Single copy sales are falling even faster than home delivery.) ... Classic example of the LAT's slowfooted, clueless stuffy indifference to what people are actually interested in and talking about: The failure to cover Judith Regan's "culture"-bringing move to L.A. in anything other than a 108 word A.P. squib. [Maybe they had something today-ed. You mean I have to go out and pick the paper up off the stack moldering on my front stoop? It had spiders on it and everything. Yecch. But no Regan. ...Can I put it back outside now?] 11:28 A.M.

Thursday, April 14, 2005

The New Phrenology: WaPo's Robin Givhan argues that John Bolton's haircut shows he lacks "respect for the job" of U.N. ambassador. She does not seem to be joking. ... P.S.: It could have been worse: Bush could have nominated Bill Gates. ... 11:58 P.M.

Deborah Orin suggests that Barbara Boxer might be a threat on Hillary Clinton's left flank. ... Hmm. How could Hillary blunt this threat and cement her liberal base for the primaries without getting pushed "to the left the way Dean pushed John Kerry to the left in 2004"? Answer: If she's attacked viciously by Republicans! No bit of recent news was better for Hillary than GOP consultant Arthur Finkelstein's announcement that he's ginning up a "Stop Her Now" political action committee for her 2006 New York Senate race. Finkelstein won't beat her, but he (and other similar anti-HRC entrepreneurs staging Swift-ish attacks) will draw enough press attention to disgust the left and provoke an instinctive rally-rounding defense of her. Once she's emotionally re-bonded to them in their aversion to the GOP and its tactics, they're hers--the way the GOP right was Bush's after the 2000 South Carolina primary*--freeing her to a) win the primaries and b) move to the center for the general election without having to worry about losing the left. ... In sum: Finkelstein raises a bunch of money. Hillary solves a political problem. It's win-win! ... Is there more to the allegedly strained cooperation between Finkelstein and Hillary's aides in the Glover Park Group than meets the eye? [No. Politics is not that Kabuki-esque. Hillary does not want to be attacked. Ever. By anybody-ed. If she were as smart as people say she is maybe she would.] ... P.S.: Hillary's husband called Finkelstein "self-loathing." Like that's a bad thing! [Isn't it?--ed. Self-pity=bad. Self-loathing=one of the most humane and enlightening forces in human history! The Clintons could use a little, anyway.]

I think I've figured it out: There is so much positive, helpful information for Kerry in those military records that he's waiting until January, 2008to sign the form! Hillary won't know what hit her. ... 11:01 A.M.

March 3 2015 1:39 PMThe “Most Pleasurable Portrayal of Libertarianism“ Bonus SegmentDavid, Emily, and John discuss what Parks and Recreation got right about government.Emily Bazelon, David Plotz, and John Dickerson